Title IX Lawsuits

Tungate, David E., Orie, Daniel P., Phi Delta Kappan

Nearly all high schools, colleges, and Universities are vulnerable to Title IX lawsuits. As part of a school's effort to comply with Title IX, it is wise to prepare for potential lawsuits before full compliance is accomplished, Mr. Tungate and Mr. Orie point out.

Universities have found that going to court is not the best way to resolve a Title IX dispute. Since Brown University lost Amy Cohen et al. v. Brown University et al. after a bruising four-year battle that cost more than half a million dollars, most colleges and secondary schools have learned that it's best to try to settle when sued under Title IX. A Title IX case begins when an individual files a complaint with a school, files a complaint with the Department of Education's Office for Civil Rights (OCR), or files a lawsuit in federal court.

Title IX of the Education Amendments of 1972 prohibits gender discrimination at any educational institution that receives federal assistance. The provisions of Title IX did not take effect until 1978. Once they did, a flurry of lawsuits ended with the U.S. Supreme Court's 1984 ruling in Grove City v. Ball, which severely restricted the application of the law. The 1988 Civil Rights Restoration Act put the teeth back into Title IX, and today we are witnessing a new wave of Title IX litigation at the college and high school levels. A school that violates Title IX runs the risk of losing its federal funding, being forced to adopt a court-ordered compliance program, and having to pay compensatory and punitive damages.

Sports programs are frequently the targets of complaints filed with the OCR. The OCR begins its investigation by determining whether there is gender balance in the entire athletic program - not just in. individual sports. The OCR recognizes that some sports are dominated by one gender, but it wants to see that a school's athletic program as a whole offers opportunities to both men and women in proportion to their numbers in the school.

At the high school level, even if the OCR finds overall equality in a school's athletic program, the agency could still find the school in violation of Title IX in a specific area. According to the U.S. Department of Education, a school's athletic program complies with the law if it can demonstrate that:

* the participation of women is substantially proportional to their enrollment;

* the program has a history of expanding opportunities for women; and

* the interests and abilities of women have been fully and effectively accommodated.

Brown University: The Landmark Case

The longest-running and most expensive Title IX case to date is Cohen et al., the case with which we opened. This class action suit began when Brown University, in a cost-cutting move, downgraded two men's and two women's varsity programs to club status. The demotion affected 37 men and 23 women. Nine women from the demoted women's gymnastics and volleyball teams sued the university for violation of Title IX.

At the time of the suit, Brown had one of the most gender-equal athletic programs in the country. Nationally, 51% of college students are women, yet only 31% of athletes are women. At Brown, women make up 49% of the student population and 39% of the athletes.

The university argued that its athletic program "fully and effectively accommodated the interests and abilities" of its students and thus complied with Title IX. The court, however, focused on the disparities between gender ratios in the student population and in the athlete population and between funding for men's and women's programs.

After multiple decisions by both a district court and the First Circuit Court of Appeals and an unsuccessful attempt to have the U.S. Supreme Court reconsider, Brown had to comply with a court-approved Title IX corrective action plan and was stuck with half a million dollars in legal fees.

Virginia Tech: Roll Over and Play Dead

The experience of Brown University was not lost on other schools. …

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